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ELCOtherELC Petition No. E025 of 2022· [2024] KEELC 4406 (KLR)

Panabis Tsuma & Others v Wendy Bryant Nyamweya & Another

Environment and Land Court
15 May 2024
12,893 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~52 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land dispute petition because adverse possession claims must use civil procedure, not constitutional petitions.

What this practically means

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Executive summary

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This omnibus ruling of the Environment and Land Court at Mombasa (Naikuni J) determined two competing interlocutory applications in a constitutional petition concerning plots MN/I/11352 and MN/I/11353, Mombasa. The petitioners, claiming their structures were demolished and they were evicted, sought a temporary injunction restraining the respondents from dealing with the suit property, a restriction on dealings at the Land Registry, and lifting of the corporate veil to join Barnsbury Investment Limited and its directors, on grounds that the respondents had fraudulently sold the litigated land to third parties. The 2nd Respondent, supported by the 1st Respondent and the Interested Party, applied to strike out the petition as an abuse of process and to have it converted to a plaint, arguing it was in substance an adverse possession claim dressed as a constitutional petition and that it failed the Anarita Karimi Njeru threshold of precision. The court framed three issues and held that the petition failed to meet the requirements of a constitutional petition: the petitioners did not demonstrate with precision how their rights were violated, and their real claim - adverse possession - was a private-law claim governed by the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, for which ordinary civil procedure provided an efficacious remedy. The striking-out application dated 27th January 2024 was allowed in entirety; the petition dated 24th June 2022 was struck out for lacking a constitutional basis; the petitioners' injunction application was struck out as overtaken by events; and costs of both applications were awarded to the 1st and 2nd Respondents.

Key legal issues

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01

Whether the Petition met the threshold of a constitutional petition under the Anarita Karimi Njeru rule

Holding

It did not; the petitioners pleaded constitutional provisions but failed to demonstrate with precision how their rights were violated, and the substance of the claim was adverse possession

Reasoning

The court applied the Anarita Karimi Njeru principle as endorsed in Mumo Matemu, requiring reasonable precision in pleading constitutional violations. On perusal of the pleadings, evidence and submissions, the petitioners failed to demonstrate how their rights were infringed. The court held the true dispute was a private-law claim of adverse possession for which the Civil Procedure Act and Land Act afforded an efficacious remedy, so the claim could not be elevated to a constitutional question.

p. 24
02

Whether an adverse possession claim may be brought by constitutional petition

Holding

No; such claims are private-law claims that must be brought by Originating Summons under Order 37 of the Civil Procedure Rules read with Sections 7, 13 and 38 of the Limitation of Actions Act

Reasoning

Relying on the line of authority including Bandari Investment Co. Ltd, Kyule v County Government of Kajiado and Parkire Stephen Munkasio v Kedong Ranch Ltd, the court held that adverse possession claims have laid-down statutory procedures which must be followed. Where a clear procedure is prescribed by statute, it should be strictly followed rather than clothing the dispute in a constitutional petition.

p. 23
03

Whether the striking-out jurisdiction under Order 2 Rule 15 should be exercised

Holding

Yes, the Petition was struck out as lacking a constitutional basis, the court finding the application meritorious despite acknowledging that striking out is draconian and reserved for clear cases

Reasoning

The court acknowledged that the power to strike out is draconian and should be exercised only in the clearest of cases, citing fair hearing rights under Articles 25(c), 47 and 50(1). Nevertheless, it found the petitioners' failure to meet constitutional pleading requirements, and the existence of a proper statutory avenue for their claim, justified striking out the Petition in its entirety.

p. 25

Legal principles established

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  • A constitutional petition is not an appropriate vehicle for a claim founded on adverse possession, which must be pursued by Originating Summons under Order 37 of the Civil Procedure Rules and Sections 7, 13 and 38 of the Limitation of Actions Act
  • A petitioner alleging violation of constitutional rights must plead with reasonable precision the right, the constitutional provision infringed and the manner of infringement
  • Where a clear statutory procedure exists for redress of a grievance, that procedure should be followed rather than invoking the Constitution

Court orders

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  1. 1.The Notice of Motion application dated 27th January, 2024 be and is hereby found to have merit and is hereby allowed in entirety with costs
  2. 2.The Notice of Motion application dated 24th October, 2023 stand undetermined as it has been overtaken by events and therefore be and is hereby struck out
  3. 3.The Petition dated 24th June, 2022 be and is hereby struck out for lacking a constitutional basis
  4. 4.The costs of the Notice of Motion application dated 24th October, 2023 and application dated 27th January, 2024 are awarded to the 1st and 2nd Respondents for participating in them

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 27(1), Cap. 21
  • Civil Procedure Rules, 2010Order 40 Rules 1 and 10, Order 51, Order 37 Rules 1 and 19, Order 2 Rule 15, Order 1 Rule 10
  • Environment and Land Court ActSections 3, 13(7), 19, No. 19 of 2011
  • Constitution of Kenya, 2010Articles 22(1), 25(c), 26, 27, 28, 29, 39, 40, 42, 43, 47, 50, 56, 57, 69, 70, 159(2), 162(2)(b), 165(3)(a), 245
  • Land ActSection 7, No. 4 of 2012
  • Limitation of Actions ActSections 7, 13, 38, Cap. 22
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 2, 7, 10(2), 26(1) and (2)
  • Appellate Jurisdiction ActSections 3A and 3B, Cap. 9

Cases cited (23)

  • James Ndung'u Kero v Chief Land Registrar, Director of Survey & Attorney General
    [2022] KEELC 1446 (KLR) (ELC E046 of 2021)
  • Giella v Cassman Brown & Co Ltd
  • Amarita (Anarita) Karimi Njeru v Republic
    [1976-80] 1 KLR 1283 / [1979] KLR 154
  • Trusted Society of Human Rights Alliance v Attorney General & others
    [2015] eKLR
  • Mumo Matemu v Trusted Society for Human Rights Alliance & 5 Others
    [2013] eKLR
  • Humprey Mutegi Burini & 9 Others v Chief of the Kenya Defence Forces & another
    [2017] eKLR
  • Communications Commission for Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • Bandari Investment Company Limited v National Police Service & Others
    ELC (Mombasa) Petition No. 15 of 2017 (2021)
  • Kyule & 640 others v County Government of Kajiado & 5 others
    [2023] KEELC 16997 (KLR) (Constitutional Petition 25 of 2020)
  • Parkire Stephen Munkasio & 14 others v Kedong Ranch Limited & 8 others
    [2015] eKLR
  • Peter Ochara Anam & 3 Others v Constituency Development Fund Board & 3 Others
    (2011) eKLR (Kisii High Court Petition No. 3 of 2020)
  • Ben Kipngeno & 6 Others v Attorney General & Another
    (2007) eKLR
  • Republic v Institute of Certified Public Secretaries of Kenya, Ex-Parte Mundia Njeru Geteria
  • Steve Mwangi Gatunge v Edwin Onesmus Wanjau
    (2022) eKLR
  • John Harun Mwau v Peter Gastrow & 3 Others
    [2014] eKLR
  • Kivanga Estates Limited v National Bank of Kenya Limited
    [2017] eKLR
  • Meme v Republic
    [2004] 1 E.A. 124
  • John Mbogua Getao v Simon Parkoyiet Mokare & 4 others
    [2017] eKLR
  • Bethwell Allan Omondi Okai v Telkom (K) Ltd (Founder) & 9 others
    (2013) eKLR
  • Bernard Murage v Fineserve Africa Ltd & 3 others
    (2015) eKLR
  • Dr. Rev. Timothy Njoya v The Hon. Attorney General and Kenya Review Authority
    HC Constitutional and Human Rights Division Petition No. 479 of 2013
  • Thorp v Holdsworth
    (1876) 3 Ch. D. 637
  • Speaker of National Assembly v Njenga Karume
    [2008] 1 KLR 425
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, No. 19 of 2011

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Panabis Tsuma & Others v Wendy Bryant Nyamweya & Another", Case Analysis (2024). ELC Petition No. E025 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4406/eng@2024-05-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.